1. The only point argued in this appeal is as to the correctness of the judge in holding that the account on which plaintiffs rely is not a mutual account within the meaning of Article 85 of Schedule II of the Limitation Act.
2. The reason assigned by the District Judge is that with one trifling exception, and that beyond the period of limitation, the account has been invariably in favor of plaintiffs. He says, 'although it may not be necessary in order to bring the case within Article 85 of Act XV of 1877 that there should be actual demands, it is necessary that the balance should fluctuate, being at times in favor of one party and at times in favor of the other,' and in support of this proportion he refers to Narrandas Hemraj v. Vissandas Hemraj I. L. R 6 B 134 and Hajee Syud Mahomed v. Mussamut Ashrufoonnissa I. L. R 5 C 759
3. In the former case it was said by Sir Charles Sargent, C. J., that the corresponding clause of Act IX of 1871 appeared to have been intended to apply to 'cases where the course of business has been of such a nature as to give rise to reciprocal demands between, the parties, in other words, where the dealings between the parties are such that sometimes the balance may he in favor of one party and sometimes of the other.' The meaning of which is not that there must have been such a shifting balance, but such was a possible and likely incident of the mutual transactions with regard to which the account was kept.
4. The case in I. L, R 5 C 759 is authority for the proposition that the mere fact of the balance having been in favour of the defendant on some occasions is not sufficient to constitute the account a 'mutual, open and current account.'
5. A shifting balance may, no doubt, be a test of mutuality, but' its absence cannot be taken to be conclusive proof against mutuality.
6. The reason assigned by the judge for his finding is therefore not valid; but, his decision is correct. The rule to be applied is to be found in the judgment delivered by Mr. Justice Holloway in Hirada Basappa v. Gadigi Muddappa 6 M. H. C. K 142 at p. 144. 'To be mutual there must be transactions on each side creating independent obligations on the other, and not merely transactions which create obligations on the one side, those on the other being merely complete or partial discharges of such obligations.' The amounts credited to defendant in the account kept by plaintiffs in the present case are merely payments made in reduction of the debt due from defendants to plaintiffs, and the two entries of amounts due to defendants from plaintiffs for oil, &c;, purchased from defendants are also credited merely as items received in partial discharge of defendant's debt to the plaintiffs. We cannot accede to the contention that they are evidence of reciprocal demands. They are casual merely and not such as would imply a regular course of reciprocal dealings.
7. The Lower Court's decision is, therefore, correct and this appeal must be dismissed with costs.
8. Objection has been filed by respondent against that part of the Lower Court's decree which awards to plaintiff's costs on the whole amount sued for, instead of limiting the Same to the amount decreed. The general rule is that if a plaintiff recovers a less amount than he claimed in the plaint, his costs should be apportioned according to the amount recovered and not to the sum claimed Madhan Mohan Boss v. Gopal Doss 10 M. I. A 563 The judge has given no reason for departing from this rule. The decree will be modified by awarding costs to plaintiffs only on the amount decreed. The circumstances of the case are such as to justify disallowance of costs to the 2nd defendant, respondent.
9. In allowance of this objection the Lower Court's decree will be modified as above.
10. There will be no order as to costs of this memorandum of objections.